Franklin v. State, 87-522

• Decision Date: 24 May 1988
• Docket Number: No. 87-522,87-522
• Citation: 13 Fla. L. Weekly 1269,526 So.2d 159
• Parties: 13 Fla. L. Weekly 1269 Robert Bernard FRANKLIN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 159

526 So.2d 159

13 Fla. L. Weekly 1269

Robert Bernard FRANKLIN, Appellant, v. STATE of Florida, Appellee.

No. 87-522.

District Court of Appeal of Florida Fifth District.

May 24, 1988.

James B. Gibson, Public Defender and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Ellen D. Phillips, Asst. Atty. Gen., Daytona Beach, for appellee.

ORFINGER, Judge.

On October 14, 1983, the defendant was sentenced as a youthful offender to two concurrent terms of three years in a youthful offender facility to be followed by three years community control. After the defendant had completed the incarcerative portions of his youthful offender sentences and while on community control, affidavits of violations were filed to which the defendant entered a plea of guilty. The defendant elected to be resentenced under the guidelines and a sentencing guidelines scoresheet was prepared which scored the defendant in the twelve to seventeen year range. The range would have been seventeen to twenty-two years with a one cell enhancement for violation of probation. The defendant was sentenced to two concurrent terms of fifteen years incarceration, with credit for time served. A notice of appeal was filed and the public defender filed an Anders ¹ brief on the defendant's behalf.

After reviewing the file as required by State v. Causey, 503 So.2d 321 (Fla.1987), we directed the public defender to file a supplemental brief addressing the applicability of Poore v. State, 503 So.2d 1282 (Fla. 5th DCA 1987), ² and Wayne v. State, 513 So.2d 689 (Fla. 5th DCA 1987). ³ In Poore, a youthful offender was sentenced to a term of four and one-half years, with the incarcerative portion of the sentence suspended after two and one-half years and the defendant placed on probation for two years. After serving his period of confinement, the defendant in Poore was placed on probation which he proceeded to violate. The defendant elected to be "resentenced" under the guidelines, but this court held that the defendant had no right to elect, as there was no authority or necessity to impose a second sentence. Instead, the court held that the defendant should have been recommitted to serve the remainder of the suspended sentence. In addition, in dictum in Poore, the court stated that section 948.06(1), Florida Statutes (1987), which allows a court upon revoking probation, to impose any sentence which it might have originally imposed, applied only to cases where a defendant was originally placed on straight probation without any incarceration. We reaffirm the result in Poore, but we now recede from the dictum in Poore which was later relied on in Wayne. ⁴

The defendant in Wayne was sentenced to thirty months incarceration to be followed by two and one-half years probation. After serving his thirty months, the defendant was released on probation which he subsequently violated. The trial court "resentenced" the defendant to four years incarceration but this court vacated the sentence and ordered the defendant discharged, relying on Poore. The court held that since there was no suspended period of confinement left to be served, as there had been in Poore, the defendant could not constitutionally be sentenced a second time to further incarceration for the same offense, merely because he had violated the probation appended to a lawful sentence. That holding renders the probation imposed subsequent to incarceration a nullity, because the trial judge has no power to impose a penalty for its violation, and we conclude that such result is in conflict with established precedent and logic.

In State v. Payne, 404 So.2d 1055 (Fla.1981), the Florida Supreme Court addressed the question of whether double jeopardy was involved when sentencing a defendant after revocation of probation. The defendant in Payne was sentenced to one year imprisonment which was "suspended" and the defendant was placed on three years probation. When the defendant's probation was revoked because of a violation, and a five year prison term imposed, the defendant claimed that the new sentence violated the double jeopardy clauses of the United States and Florida Constitutions and that he could not be resentenced to more than the originally imposed one year imprisonment. However, the court in Payne found that double jeopardy comes into play only when a defendant is sentenced and then resentenced for precisely the same conduct, as discussed in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). On the other hand, where a defendant's own actions in violating probation have triggered the resentencing, the court found that the state of Florida has chosen to subject the probation violator to any sentence which might have originally been imposed. Since the new sentence is based on the defendant's intervening conduct, neither the United States nor Florida constitutions prohibit such action. Payne, 404 So.2d at 1057.

The court in Payne expressly adopted the reasoning of Justice Frankfurter in his dissent in Roberts v. United States, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41 (1943), ⁵ in which he said:

We certainly should not countenance the notion that a probationer has a vested interest in the original sentence nor encourage him to weigh the length of such a sentence against any advantages he may find in violating his probation. To bind the Court to such a sentence is undesirable in its consequences and violative of the philosophy of probation.

Id., 320 U.S. at 274, 64 S.Ct. at 118. In conclusion, the court in Payne found that it was the defendant's conduct which resulted in the stiffer second sentence, and such a sentence does not offend the safeguards of the Fifth Amendment. See also Williams v. Wainwright, 650 F.2d 58 (5th Cir.1981) (increased sentence of incarceration after revocation of probation which followed imprisonment does not violate the Fifth or Fourteenth Amendment prohibition against double jeopardy since the increase is based on defendant's subsequent conduct). The same reasoning applies in this case. Because it was the defendant's own behavior which resulted in the revocation of probation, resentencing him to a longer period of incarceration does not violate double jeopardy principles. We recede from any dicta to the contrary in Poore.

In Wayne, the court suggests that the sentencing form set out in Florida Rule of Criminal Procedure 3.986 should be modified because it "[p]rovides for what is erroneously presumed to be a second method of imposing a 'split' sentence." Wayne, 513 So.2d at 690. However, the form in Rule 3.986 was amended by the Florida Supreme Court in 1981 to specifically provide for the two separate sentencing alternatives of either a term of incarceration to be followed by a period of probation or a total term of incarceration suspended to probation after a specified time. ⁶ We cannot and should not assume that the court did not consider double jeopardy principles or that it intended that the trial judge perform a meaningless act if it selected the first probation alternative. In McKinley v. State, 519 So.2d 1154 (Fla. 5th DCA 1988), we concluded that a sentence of incarceration to be followed by a term of probation was a split sentence, and that so long as the incarcerative portion did not exceed the guidelines and the total restraint did not exceed the statutory maximum sentence, the sentence was not a departure. 519 So.2d at 1154. In his concurring opinion in McKinley, Judge Cowart nonetheless asserts that although a sentence according to the first alternative is not illegal per se, it is potentially and inherently infirm since the provision for probation is superfluous and unenforceable upon a violation. Judge Cowart contends that it is imperative that a portion of the defendant's lawful sentence be reserved, to be imposed if and when probation is violated. Id. at 1155.

However, in State v. Jones, 327 So.2d 18 (Fla.1976), overruled on other grounds, Villery v. Parole and Probation, 396 So.2d 1107 (Fla.1981), the court specifically rejected this asserted necessity of suspending a portion of a split sentence. In Jones, the defendant was sentenced to one year in the county jail to be followed by five years probation. The trial court in Jones then reconsidered and reduced the jail time to time served, but continuing the five years probation. The Jones court held that a trial judge is not required to impose a total sentence and then immediately withhold a portion for use in the event that probation is violated, since such a requirement would conflict with section 948.06, Florida Statutes, authorizing a trial judge to impose any sentence he might have originally imposed after revoking probation. Instead, the court interpreted section 948.01(4), Florida Statutes, ⁷ which states that in a split sentence, the court shall "withhold the imposition of the remainder of the sentence" to mean merely that the time spent in jail must be within the maximum jail sentence which could be imposed. Id. at 25. The court in Jones found no legislative intent to require an initial imposition of the total sentence and therefore rejected the defendant's contention that his punishment after revocation of probation must be limited to the originally imposed one year imprisonment.

Likewise, in Payne, the court affirmed the sentence of five years incarceration after revocation when the original sentence was only one year followed by three years probation. Again the court held that the defendant could be sentenced upon revocation to any term which could have originally been imposed. Conspicuously, the court made no mention in Payne of any requirement to withhold a portion of the incarceration. It appears clear, therefore, that Rule 3.986, rather than being an error, was in fact a clarification of the two separate split sentence alternatives available to the courts. While a judge may clearly...